E-Bulletin

Recently, there has been some concern in the disability community as to whether the Central and State Disabilities Commissioners have effective powers to protect the rights and entitlements of disabled persons in India. When provisions in disability law such as reservations in higher education and employment, and equal access to public places and facilities are flouted, how can redress be obtained? Approaching the superior courts such as the High Courts and the Supreme Court can be expensive and time consuming. The earlier (1995) Disability Act and the new one (2016) have provided for the Disabilities Commissioners to “look into” complaints of persons with disabilities and “take steps”. But what does this amount to? Past judgments of some High Courts have appeared to hold that the Disabilities Commissioners can only issue recommendations, but not mandatory directions. But two court judgments stand out in affirming that the role of the Disabilities Commissioners is not an empty formality and that they are empowered to provide real protection and redress.

In Geetaben Ratilal Patel’s case (see case reference below) , the Supreme Court was dealing with the circumstance that a primary school teacher was dismissed from her job after she took a prolonged absence from her school duties on account of mental illness. She approached the Disabilities Commissioner, who held that since she developed her disability during her employment, she could on no account be terminated from her job having regard to the Persons with Disabilities Act, 1995. In addressing the question whether the Disabilities Commissioner had the power to direct reinstatement of the school teacher, the apex court said:

“…the power of the Commissioner to look into the complaints with respect to the matters relating to deprivation of rights as provided under Section 62 of the Act is not an empty formality and the Commissioner is required to apply his mind on the question raised by the Complainant and find out the truth behind the complaint….If it comes to the notice of the Commissioner that a person with disability has been deprived of his rights or that the authorities have flouted any law, rule, guideline, instruction, etc. issued by the appropriate Government or local authorities, the Commissioner is required to take up the matter with the appropriate authority to ensure restoration of rights of such disabled person and / or to implement the law, rule, guideline, instruction if not followed…”

In the case of Prashant Kumar (see case reference below), the Railways had refused appointment of a successful disabled candidate to the post of Electrical Engineer, saying he was unfit for all engineering jobs because of his disability. The Chief Disabilities Commissioner, Delhi negated the stand of the Railways and held that as the candidate only had a disability affecting one leg, and had full use of his upper limbs, he was suitable for the post. The Commissioner’s order directing the Railways to appoint Prashant Kumar was challenged by the Railways in the Delhi High Court, on the ground that the Commissioner could not issue such mandatory directions. The Delhi High Court, relying upon the above judgment of the Supreme Court in Geetaben, dismissed the challenge of the Railways and upheld the directions of the Commissioner.